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August 2001 Vol. 7 No. 8 ISSN 1087-6219
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School authorities may expel student reasonably forecast to substantially disrupt school activities

The Ninth Circuit has upheld the right of a school district to expel a student who wrote a poem filled with imagery of violent death and suicide. That combined with other incidents allowed the district reasonably to conclude that there would be substantial disruption of school activities.

James LaVine was in the 11th grade when he wrote “Last Words.” It had violent images, including the lines: “As I approached,/the classroom door,/I drew my gun and,/threw open the door,/Bang, Bang, Bang-Bang.”

He had his English teacher read it, as other English teachers had read other poems of his. She became concerned and showed the poem to James's counselor, who also became concerned. The school had other disturbing information, including problems at home, a recent breakup with his girlfriend that led to claims of stalking, fighting, suicidal thoughts, and the wearing of a T-shirt that said “Eat shit and die.”

Based on all that information, James's principal “emergency expelled” him. After further review, the principal reinstated him, but maintained negative information about the incident in his file.

Although students do not leave their constitutional rights at the schoolhouse door, their rights are not coextensive with those of adults in similar circumstances. A school need not tolerate speech that is inconsistent with its educational mission. When challenged for suppressing a student's speech, school authorities must show facts that might reasonably have led them to forecast substantial disruption of, or material interference with, school activities.

In this case, the school showed such facts, particularly in light of many recent incidents of school violence. Although James may only have been using his poetry to explore the subject of school violence, the court deferred to the school's assessment of the situation. However, the school did not have a reasonable basis for leaving the damaging analysis in James's file as a permanent indictment.

LaVine v. Blaine School Dist., 2001 WL 817697 (9th Cir. Jul. 20, 2001).


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Harassment for failure to conform to male stereotype violates Title VII

The Ninth Circuit has overruled a decision that rejected a harassment claim by a man ridiculed for being too effeminate. A food server constantly mocked for walking and carrying his tray too much like a woman has suffered harassment based on his sex.

Antonio Sanchez worked for the Azteca chain of restaurants. During the four years that he worked there, his co-workers subjected him to constant insults, name-calling and vulgarities. They referred to him as “she” and “fucking female whore.” Sanchez told supervisors about the harassment, but did not follow the complaint procedure set forth in Azteca's anti-harassment policy.

Sanchez walked off the job one day after a heated argument with an assistant manager. Azteca fired him for leaving work in the middle of his shift.

In DeSantis v. Pacific Telephone & Telegraph Co., 608 F.2d 327 (9th Cir. 1979), the Ninth Circuit had ruled that Title VII did not prohibit discrimination based on the stereotype that a man should appear virile rather than effeminate. The reasoning of a later United States Supreme Court decision convinced the court to overrule DeSantis.

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the high court applied Title VII to the claim of a woman denied partnership in an accounting firm because she was “macho.” In recognizing her claim, Justice Brennan wrote that “an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”

Similar reasoning compelled recognition of Sanchez's claim: “At its essence, the systematic abuse directed at Sanchez reflected a belief that Sanchez did not act as a man should act. … We conclude that this verbal abuse was closely linked to gender.”

The court also rejected Azteca's claim to a defense under Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). To establish an Ellerth defense, the employer must prove (1) that it exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) that the plaintiff unreasonably failed to use preventive or corrective measures provided by the employer.

In this case, Azteca did not satisfy the first prong of the defense. It did not act promptly to correct the harassing behavior after Sanchez told the supervisors. The fact that he did not avail himself of the company's complaint procedure could not by itself defeat his claim.

Nichols v. Azteca Restaurant Enterprises, Inc., 2001 WL 792488 (9th Cir. July. 16, 2001).


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Independent contractor's employee cannot pursue negligent hiring claim against hirer of contractor

The California Supreme Court has extended its rulings in the Privette and Toland cases to bar claims for negligent hiring. Those cases had involved the peculiar risk doctrine.

Alberto Camargo was killed when his tractor rolled over as he was driving over a mound of manure in a corral that belonged to Tjaarda Dairy. Camargo worked for Golden Cal Trucking, which Tjaarda had hired to haul away its manure. Camargo's widow and five children sued Tjaarda on the theory that it was negligent in hiring Golden Cal.

Under the peculiar risk doctrine, a person who hires an independent contractor to do inherently dangerous work is liable for tort damages when the contractor injures others by negligently performing the work. It is a form of vicarious liability.

In two earlier cases, the Supreme Court had rejected attempts by employees of independent contractors to use the peculiar risk doctrine. Toland v. Sunland Housing Group, Inc., 18 Cal. 4th 253 (1998); Privette v. Superior Court, 5 Cal. 4th 689 (1993).

In the present case, the plaintiffs sought to avoid the impact of Toland and Privette by pleading a claim of direct negligence against Tjaarda based on its own actions in hiring Golden Cal. The Restatement (Second) of Torts recognizes a claim for negligent hiring for physical harm to third persons caused by failure to exercise reasonable care to employ a competent and careful contractor to do work that will involve a risk of physical harm unless it is done skillfully and carefully.

Employees of the independent contractor do not have such a claim. It would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker's injuries, is limited to providing workers' compensation coverage.

Camargo v. Tjaarda Dairy, 108 Cal. Rptr. 2d 617 (2001).

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Dustin Hoffman does not have right of publicity claim for altered still photograph from “Tootsie”

The Ninth Circuit has reversed a $3 million award to actor Dustin Hoffman. He did not prove that Los Angeles Magazine acted with actual malice in publishing an altered still photo from the movie Tootsie.

In March 1997, Los Angeles Magazine published an article entitled “Grand Illusions,” which used computer technology to alter film stills to make it appear that the actors were wearing Spring 1997 fashions. One of the stills was the famous one from Tootsie that showed Hoffman as the Tootsie character, dressed in a red long-sleeved sequined evening dress and high heels, posing in front of an American flag.

In the altered version, Hoffman's head and the flag remained, but his body was replaced by the body of a male model in the same pose, wearing a spaghetti-strapped, cream-colored, silk evening dress and high-heeled sandals. Hoffman sued for invasion of his right of publicity.

The article was entitled to full First Amendment protection, because the magazine's use of the altered still was not purely commercial speech. Hoffman had to prove that the magazine acted with reckless disregard for the truth, or with high degree of awareness of probable falsity.

The district court had found that the altered still created the false impression that Hoffman had posed for it. The finding was erroneous, because the contents of the article showed that Los Angeles Magazine did not intend to suggest to its readers that Hoffman himself posed for the altered still.

Hoffman v. Capital Cities/ABC, Inc., 2001 WL 754769 (9th Cir. Jul. 6, 2001).


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California disability discrimination statute has never required proof of “substantial limitation”

The Second District Court of Appeal in Los Angeles has ruled that the 2000 amendment to California's antidiscrimination statute did not effect a significant change in the definition of disability.

Marshall Wittkopf was a maintenance worker for the Los Angeles County Department of Health Services. In 1995, he became legally blind in one eye. In 1996, he returned to work, and performed all his previous job responsibilities without any restrictions or accommodations.

From its inception, California's anti-disability discrimination statute has defined disability as a condition that “limits” a person's ability to participate in major life activities. By contrast the federal Americans with Disabilities Act defines disability as a condition that “substantially limits” a major life activity.

The California Supreme Court had said in a 1993 case that “substantially limits” was part of California law. However, the statement was not necessary to the court's decision.

In 2000, the legislature amended the statute to state expressly that California law only required proof that a condition “limits” a major life activity. It also stated that the California provision had always been broader than the federal one. Therefore, the 2000 amendment was a mere clarification. Wittkopf could pursue his claim because there was evidence that his condition “limited” his ability to see, even if it did not “substantially” limit it.

Wittkopf v. County of Los Angeles, 2001 WL 828252 (Cal. Ct. App. Jul. 24, 2001).

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Discrimination based on perceived ethnicity is unlawful

The Ninth Circuit has overturned the dismissal of a claim that a police department contributed to the death of an injured motorist by refusing to investigate because it believed (erroneously) that he was Navajo.

Burton Amos fled into the Arizona desert from a head-on collision that he caused. The police halted civilian search efforts at the scene, and abandoned their own search efforts shortly after they began. Amos died in the desert. There was evidence that the department had a policy of not searching thoroughly for Navajos involved in accidents because they frequently fled, but then called in the next day.

Amos's estate had a viable equal protection claim for discrimination based on mistaken racial identity. His due process claim failed because he was not in police custody, and the police did not place him in danger.

Estate of Amos v. City of Page, 2001 WL 838863 (9th Cir. Jul. 26, 2001).


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Subsequent treatment of decisions reported on in earlier issues:

Bolter v. Superior Court (April 2001 issue), review denied (Jun. 13, 2001).

Catholic Charities of Sacramento, Inc. v. Superior Court (July 2001 issue), modified on denial of rehearing (Jul. 26, 2001).

Dudley v. Department of Corrections (July 2001 issue), now reported at 108 Cal. Rptr. 2d 739 (Ct. App. 2001).

Kane v. National Ski Patrol Sys., Inc. (April 2001 issue), review denied (Jun. 20, 2001).

Luo Yu Jie v. Liang Tai Knitwear Co. (June 2001 issue), petition for review filed (Jul. 9, 2001).

M.G. v. Time Warner, Inc. (June 2001 issue), petition for review filed (Jul. 9, 2001).

Romero v. Superior Court (July 2001 issue), petition for review filed (Jul. 18, 2001).

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